Creighton v. Kellermann

1 Disney (Ohio) 548

• Court: Ohio Superior Court, Cincinnati
• Decided: December 15, 1857
• Status: Published

Opinion

Gholson, J.

It is not stated in the motion in what particulars' the reply is indefinite and uncertain.

Upon such a general motion, the court will only look at the pleading, to see if it presented any matter which could be regarded as a denial of a material allegation in the counter-claim, or as new matter intended to be presented as a defense, and showing with sufficient clearness which it was — but if a party can not put his finger upon something specific to be made definite and certain, he can not show in what particular it is deficient, and a general motion will suffice.

2. A denial may be general or specific. If general, there can be no objection to a single statement that each and all of the allegations in a pleading, are denied. But if the denial he intended to be specific, and facts are introduced for that purpose into the pleading, it must appear, by averment, to which of the material allegations in the pleading those facts are intended to reply. There must be a general or a specific denial of each material allegation which it is intended to controvert. The denial can not be made at the same time general and specific, or to be construed, one or the other, as may be claimed by the pleader.

3. When a counter-claim set out a contract for the sale and delivery of lumber, and the giving of the note sued on as a part of the consideration, the breach of the, contract and damages, and a reply set out certain transactions explaining the dealings as to the lumber, but not addressed to any one of the material allegations in the counter-claim, and then concluded with a general denial of every allegation inconsistent with the statements in the reply, the motion to make definite and certain must be sustained.

Motion sustained.